Friday, June 6, 2014

No Go

In re Bruyette, 2014 VT 30

By Nicole Killoran

Remember In re S.C.? Earlier this year the SCOV determined that appointed counsel cannot withdraw from representing parents in a termination of parental rights appeal even if he sees zero chance of success without making frivolous arguments. Essentially, the SCOV told the Defender General to suck it up and give it a go because it is important for parents to be represented in termination cases, even if it’s only to tell the Court how unfair it was to take the parents’ kids away.

Today’s case provides the SCOV with another chance to hack away at the contours of this relatively new doctrine, in the criminal context. It also presents an opportunity for the SCOV to clarify its 2009 opinion in In re Bailey, where the SCOV was presented with similar procedural facts. The result is a review standard for State-funded counsel’s decision to not pursue an appeal for post-conviction relief (PCR) when counsel thinks it would be ethically frivolous to do so.

The charges today’s criminal defendant faced when he was convicted in 1995 are a mystery, but are ultimately unimportant to the SCOV’s opinion. While facing trial, defendant’s lawyer convinced him to reject an offered plea bargain, telling him he would face a maximum sentence of twenty-five years. When he was convicted at trial, he got max eighty-five. Ouch.

Defendant morphed into petitioner after the trial when he filed for post-conviction relief (PCR). How many times petitioner requested PCR, and for the most part the substance of those proceedings, is also a mystery in today’s opinion. The SCOV alludes throughout its opinion to arguments petitioner raised claiming ineffective assistance of counsel because of the plea bargain snafu.

What is certain is that petitioner filed another petition for PCR in Rutland Superior Court in 2012 claiming, again, ineffective assistance of counsel. The trial court appointed someone from the Defender General’s Prisoner’s Rights Office to represent him during the trial.

The State moved to dismiss claiming petitioner had already had a bite at this argument in earlier PCR proceedings, and that he could not now have a second slice of the pie. Petitioner argued that he had not been able to raise his current theory in his previous PCR petitions, but the State begged to differ. The trial court agreed with the State and granted judgment in its favor.

Petitioner’s public defender filed an appeal and sent a letter to petitioner that he later submitted to the SCOV. In her letter, the public defender said she initially thought petitioner didn’t have a shot on appeal but that she had later changed her mind. She also said she had discovered a conflict of interest. Exit Defender General; enter first state-funded conflict counsel.

As it turned out, first conflict counsel’s firm had reviewed the merits of one of petitioner’s earlier ineffective-assistance-of-counsel PCR petitions. Exit first state-funded conflict counsel, enter second state-funded conflict counsel—attorney Michael Rose.

In keeping with what likely felt to petitioner like a sinking-boat theme, Attorney Rose asked the SCOV for permission to withdraw from representation because he could not prosecute the appeal without making frivolous arguments to the Court. He also requested that the SCOV appoint new counsel. The SCOV noted that the Defender General had not gone through its typical procedure to review the merits of the claim before conflicting out, and asked for the Defender General’s input.

The Defender General reviewed petitioner’s case and decided that the earth would likely reverse its course around the sun before petitioner could succeed on appeal. It informed the SCOV that, if it were to appoint counsel, the hapless attorney would risk being caught with his pants on fire making up arguments with no basis in law or fact. The Defender General declined to assign counsel to petitioner, invoking its statutory “appeal bound for failure” card under 13 V.S.A. § 5233

Section 5233 is one of the two centerpieces of the SCOV’s subsequent opinion, which was issued after petitioner raised a few arguments for why the SCOV should not allow appointed counsel to abandon him.

Under the federal Constitution, a convicted offender is not guaranteed counsel in a PCR appeal. Today’s case is somewhat unique in that it would not have come about had Vermont’s legislature not decided to grant prisoners this right in the form of 13 V.S.A. § 5233. Before 2004, Section 5233 did not differentiate between merited and meritless appeals—a prisoner was guaranteed counsel in a PCR proceeding, period. In 2004, the legislature amended the statute to make the right contingent on appointed counsel concluding that the prisoner’s case had a shot in the dark at success.

The wording of the amendment is taken straight from Rule 3.1 of the Rules of Professional Conduct, and Rule 11 of the Rules of Civil Procedure. PCR counsel must be appointed where the attorney reviews the prisoner’s case and concludes that an appeal is “warranted by existing law or by a nonfrivolous argument for the extension, modification, or reversal of existing law or the establishment of new law.” The Defender General’s office translated the amendment to a procedure for a three-attorney review of the merits of a prisoner’s case. If all three attorneys conclude it’s a loser, the Defender General issues a letter saying as much and declines to represent the petitioner.

The SCOV had an opportunity a few years ago to take a closer look at the impact of the 2004 amendment. In In re Bailey, the second centerpiece of today’s opinion, the trial court denied the prisoner post-conviction relief. The prisoner filed a notice of appeal pro se, then asked for appointed counsel. State-funded conflict counsel had to be assigned. Conflict counsel sought to withdraw saying she couldn’t handle the appeal without finding herself in an awkward ethical conundrum making frivolous or false arguments to the court. Conflict counsel also cited to Section 5233.

If you recall from In re S.C., the U.S. Supreme Court set up a procedure in Anders v. California to protect a criminal defendant’s constitutional right to counsel by requiring a brief on why the attorney thought the appeal would be frivolous, and how it might succeed. One member of the SCOV in Bailey ordered conflict counsel to submit the equivalent of an Anders brief. Conflict counsel asked the opinion of the full SCOV on whether she should in fact have to file an Anders brief.

The Bailey SCOV noted that prisoners have no constitutional right to appointed counsel in a PCR appeal, just a statutory right in Vermont. The SCOV concluded that an attorney asking to avoid the ethical discomfort of prosecuting a meritless PCR appeal does not have to file an Anders brief before she will be allowed to withdraw. If appointed counsel thinks it’s frivolous, the court should not second-guess that decision, and counsel should be allowed to withdraw. The SCOV did not decide whether the Defender General’s three-attorney review process was adequate, because the issue was not raised in that case.

Noting that its decision would leave a PCR petitioner high and dry with no choice but to pursue a pro se appeal, the Bailey court added a last caveat to its decision—if the court concludes that a prisoner’s case has merit after appointed counsel has stepped out, the court can send it back to the Defender General to reconsider whether it also thinks the prisoner has a shot.

With all that in mind, the SCOV turns to the substance of petitioner’s arguments in the present appeal. First, petitioner argues the SCOV should apply the pre-2004 version of Section 5233 that did not distinguish between frivolous and nonfrivolous. According to petitioner, the present PCR petition arose from PCR proceedings he started after his conviction in 1995, before 2004, so the pre-amendment version applies. Sorry, says the SCOVthe current petition is a new proceeding, and petitioner can’t invoke the pre-amendment statute.

Second, petitioner argues that Attorney Rose, and the Defender General, didn’t do a good job of evaluating his case. The SCOV notes that Attorney Rose cited Rule 3.1 of the Rules of Professional Conduct. The letter the Defender General issued after it conducted its review of petitioner’s case said that it lacked merit and continued representation would violate professional conduct and civil procedure rules, without specifying which rules.

From this, the SCOV infers that the Defender General meant Professional Conduct Rule 3.1 and Civil Rule 11. This matches the standard set out in Section 5233. The SCOV falls back on its conclusion in Bailey that the decision on the merits of a prisoner’s appeal is really up to appointed counsel. From all appearances, appointed counsel here did what it was supposed to do. Petitioner loses here too.

Finally, petitioner argues that any conflict counsel the Defender General would assign to his case would automatically be conflicted out. The SCOV notes, perhaps tongue-in-cheek, that the point of conflict counsel is to allow appointment of a lawyer without a conflict outside of the Defender General’s office.

The SCOV grants Attorney Rose’s motion to withdraw, and refuses to give petitioner new counsel. The SCOV leaves off with a note that, if it determines petitioner’s case has a shot, it might give it back to the Defender General to reconsider.

Justice Dooley writes a separate opinion concurring and dissenting in part. The concurrence agrees that Section 5233, and In re Bailey, require allowing appointed counsel to withdraw. The dissent differs with the majority in that Justice Dooley would have granted Attorney Rose’s request to appoint replacement counsel funded by the State.

Justice Dooley cites to three reasons for his dissent. He is bothered by the history of the case, in particular the initial plea bargain snafu and the way petitioner was tossed around between attorneys who variously thought he had a shot on appeal (the public defender) and who did not (both conflict counsels and later the Defender General). He also doesn’t like the fact that the SCOV brushes over the Defender General’s merits review process without any greater understanding of how it works, and that Section 5233 doesn’t technically authorize evaluation by the Defender General after it has conflicted out. Finally, Justice Dooley notes the SCOV’s conclusion in In re S.C. that only in a rare case will appointed counsel risk violating the rules of ethics by pursuing a client’s case that seems to be frivolous.

With these in mind, Justice Dooley explains that he would direct the Defender General to reappoint state-funded counsel to petitioner. He believes that the Defender General applied the wrong standard in reviewing petitioner’s case—one of merit, and not frivolity, as the statute and In re S.C. require. Justice Dooley thinks the majority ignores the standard in In re S.C. of requiring appointed counsel to pursue all but the rarest case that truly is frivolous. He sees the majority’s opinion as fodder for the Defender General to refuse to fund representation more often, not rarely.

In essence, Justice Dooley accuses the majority of adopting a “magic words” standard for reviewing a Defender General’s decision to decline representation. Regardless of whether a prisoner’s case is reviewed for merit or frivolity, if the Defender General makes the “boilerplate statement” that matches the language in Section 5233, the SCOV will infer compliance, look no further, and deny a prisoner appointed counsel.

Justice Dooley notes that petitioner’s public defender found a nonfrivolous basis for his case, which is why she filed the appeal, but that the Defender General was not required to review petitioner’s case for frivolity. The dissent thinks the majority’s new standard veers away from Section 5233 and Bailey, a decision Justice Dooley does not believe endorses this new “magic words standard to deny all legal representation to a PCR plaintiff.”

If ever there was a case to take a closer look at the Defender General’s evaluation procedure or reassign a case to be reevaluated under the “rare case” standard set out in In re S.C., this is it according to the dissent because it appears that the wrong standard was applied to review petitioner’s case. The secrecy of the review process, and the fact that at least one of the Defender General’s reviewing attorneys, the public defender who filed the appeal, found some basis for pursuit, indicates that something is rotten in the review process.

Justice Dooley notes his conclusion in his concurring opinion in In re Crannell that, if a public defender or the Defender General takes the first step of representation, such as happened here when the public defender filed the appeal, appointed counsel has given up the right to withdraw claiming frivolity. Because jumping ship after initiating an appeal harms the client, Justice Dooley would apply his standard in Crannell to an appeal and require the Defender General to be bound by its public defender’s opinion that petitioner’s case is not frivolous.

Unfortunately for petitioner, the SCOV gives the green light to appointed counsel to step out and leave petitioner up effluent creek without a paddle. There is at least a glimmer of hope in the SCOV’s statement that it might ask the Defender General to reconsider if it thinks petitioner has a shot. He has potentially 66 more years on his hands to convince someone to help him row.

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